on a holy day. But the language of Varro and of Ovid, PART II. who speak of the days in which the tria verba are unheard, is as applicable to the jurisdiction based on the imperium as to that based on lex. Both praetors, in all their jurisdiction, must utter one of the three formal words do, dico, addico, and the prohibition held, if the edictal utterance of these words was placed on the same level as their verbal utterance, and we do not press the literal interpretation of the prohibition of the praetor's speech (fari). If we suppose that jurisdiction was as a rule confined to Dies fusti. dies fasti, the number of days on which the praetor could with certainty be approached was particularly small, not more than about forty-five in the whole year1; and from these must be further subtracted the number of the moveable festivals (feriae conceptivae) and of those ordained by a magistrate (imperativae). All lites and iurgia which might interrupt the peace of the festival were on such days forbidden 2. But a small number of court-days, when fairly distributed over the year, were probably sufficient as long as Rome maintained any resemblance to the ancient city state; the business in iure, especially after the formulary procedure had been introduced, was very rapidly transacted, and the business in iudicio, the really lengthy portion of the process, was not interrupted on dies nefasti. Yet, unless jurisdiction Dies was very frequent on comitial days, it is not easy to see how this limitation of the praetor's jurisdiction was consistent with the extension of the Roman franchise to Italy, 1 Mommsen in C. I. L. i. p. 373; courts might be held on any of the dies comitiales, which Mommsen reckons at 194 in the year; [Macrob. i. 16, 14 'Comitialibus utrumque potest (cum populo agi et lege agi)']; but jurisdiction on these days was uncertain; the court could only be held if no comitia were announced. Cic. de Div. i. 45, 102 'inque feriis imperandis ut litibus et iurgiis se abstinerent (imperabatur).' If a contrast is here implied between lites and iurgia the latter may be equivalent to arbitria; cf. de Leg. ii. 8, 19; 12, 29. comitiales. : BOOK I. and the far greater amount of judicial business that this extension brought to the praetorian courts1. Proceedings in iudicio; ludi. The legal The procedure of the iudices, although happily not interrupted by the regular holy days or even perhaps necessarily by the feriae, was not possible on the days on which public games (ludi) had been ordained. On these the judges were freed from their public burden (munus), and the increasing number of such days, due to national wealth and leisure or to private ambition, was a great hindrance to jurisdiction, large portions of the spring and autumn being rendered unavailable for the business of the courts. But, in spite of this hindrance, the circumstance that at Rome the iudex was not subject to the continued control of a magistrate rendered the sittings of the iudices more frequent than those of a modern civil jury. 2. The extremely small number of days on which a magistrate's court could with certainty be held makes it extremely probable that on these days a court must be held. As regards the sittings of the iudices, nothing resembling the fixed Court Term or Pleading Time (actus rerum), as it was called, of the Augustan epoch is known for the Republic; but the object of Augustus seems mainly to have been to increase the time available for judicial business, and the two Terms-Winter and Summer-into which we find the year divided after his organization, seem practically to have existed during the Republic; the respective vacations 2 being marked by the series of games in the spring and autumn. The comitial days, for which no comitia was announced, would be known in ample time at Rome; it is more difficult to see how such knowledge would penetrate to the municipal towns. As we cannot tell whether the praetor felt himself bound to hold a court on such days, the facilities for even urban jurisdiction on dies comitiales are unknown. The same difficulty applies to the days marked EN, which were partly Fasti. Mr. Fowler suggests (Roman Festivals, p. 9, note 6) that even the days of the post-Julian era marked NP might have been partly open for legal business. 2 For the Republican vacation (res prolatae) see Plaut. Capt. i. 1, 10; Cic. pro Mur. 13, 28. PART II. Municipal jurisdiction was probably regulated by the same respect for days and festivals; but, even after the Times of extension of the civitas, the observances must have been and local and not regulated by the practice at Rome. municipal provincial juris In the provinces the various local festivals must have diction. been observed by the governor and had to be considered in fixing the dates of his conventus. The iudices of a circuit were selected for service at the beginning of the assize, but they might go on sitting long after the governor had quitted this conventus for another. a court 3. The length of a court-day had, according to the Length of Twelve Tables, been from forenoon to sunset. The hour day. of commencement was probably the third; by midday the absent litigant might be condemned1; were both parties present the court broke up at the setting of the sun, and a lex Plaetoria made it obligatory that the praetor urbanus should continue his jurisdiction until this suprema tempestas 2. In the Ciceronian period the courts still began their sitting at the second or third hour of the forenoon 3; the tenth hour of the evening was the time at which the undefended litigant could be condemned, and marked the usual close of the day's proceedings. No attempt could be made to fix the length of a trial, and the number of adjournments (comperendinationes) at intervals of ten or Adjournthirty days depended on the nature of the case and the discretion of the iudex. 1 ANTE MERIDIEM CAUSAM COICITO (Auct. ad Herenn. ii. 13, 20). 2 Censorinus, de Die Nat. 24, 3 (cited p. 31, note 2). Hor. Sat. ii. 6, 35 :— 'ante secundam 'Roscius orabat sibi adesses ad Puteal cras.' Martial, iv. 8, 2 Exercet raucos tertia causidicos.' The earliest time in the Ciceronian period is perhaps reflected in pro Quinct. 6, 25 (Naevius . . . suos necessarios. . . corrogat ut ad tabulam Sextiam sibi adsint hora secunda postridie. Veniunt frequentes. Testificatur iste P. Quinctium non stitisse'). This is an appearance for an affidavit, not before a court, and it is not clear that the affidavit was made on the very day on which the case was called. ment. BOOK I. in legis actiones and iudicia legitima; : The time during which a single action might last Limit of without requiring renewal ab initio-generally known pendency as its 'limit of pendency'-depended on the source from in an action; which the action proceeded. In the case of the legis actiones, and the iudicia legitima developed from them by the application of the formula, the action was as eternal as the law itself; for the limit of eighteen months which Gaius assigns to such trials was the creation of the Julian legislation1. The case in which Cicero was engaged for Quinctius had lasted two years at the time when his final pleadings were delivered 2; he reckons the duration of the process from the time at which the parties had first agreed to appear before a magistrate; but the case as it finally developed is no true instance of the duration of a legitimum iudicium. Its original promise was to be an action for adjusting the affairs of a partnership or for determining the claim to a debt; its final issue at the stage of which we possess the record was to discover whether a praetorian declaration of bankruptcy against Quinctius was valid or not 3. It, therefore, really belonged in iudicia to the class of actions quae imperio continentur, which were conditioned by time. The limit of pendency in these actions is the obvious one of the duration of the office of the magistrate who has granted them. They must be finished within this year of office or else renewed. The case of Quinctius is not an exceptional instance of the duration of one of these iudicia, without renewal, beyond the term of the magistracy which has granted it; it is in the nature of an appeal to a court established by praetorian authority to determine whether the act of a former praetor had been valid, according to the ius honorarium itself, and had been actually carried into effect. It is a preliminary -a praeiudicium-to a trial at law, to determine the 1 Gaius, iv. 104. 2 Cic. pro Quinct. 12, 40; 13, 42. quae imperio continentur. See Appendix on the pro Quinctio. Gaius, iv. 105 'Ideo autem imperio contineri iudicia dicuntur, quia tamdiu valent quamdiu is qui ea praecepit imperium habebit.' conditions under which this trial is to be fought out; the PART II. preliminaries of this trial reached back, as Cicero says, to a date preceding this praeiudicium by two years. the It is probable that the necessity for the renewal of Effect of praetorian actions did not seriously affect their continuity. necessity The same formula would in most cases be sought from of renewing the incoming praetor, and he might give the same iudex, praetorian familiar with the facts elicited at the previous hearings1. It need scarcely in practice have been a greater ‘renewal' than that brought about by every adjournment of a case. (b) The Summons. actions. vocatio. The first step in a process was naturally the service of In ius a summons on the future defendant, which, in the Roman procedure, was accompanied by an attempt to enforce his presence before the praetor. It is true that the magistrate had theoretically the right of compelling the latter to appear before him; but both in the earlier and later period of Roman process, the effective summons of the defendant was regarded as the private business of the plaintiff. The older law allowed him to call on his opponent, in whatever place he might meet him, to follow him to the court; resistance was followed by force; with a solemn appeal to the by-standers (antestatio) the plaintiff laid hands on his adversary; any reasonable amount of violence could be used to effect the transference of the unwilling litigant, although inexpensive modes of locomotion had to be provided for those who were suffering from age or illness 2. The exceptio rei in iudicium deductae (Gaius, iv. 106) could never have been intended to stop such a renewal. On its meaning see the section on the litis contestatio. Si 2 The Twelve Tables enacted 'Si in ius vocat, ni it, antestamino. calvitur (i. e. moratur) pedemve struit (i. e. fugit) manum endo iacito. Si morbus aevitasve vitium escit, iumentum dato. Si nolet, arceram (i.e. plaustrum) ne sternito' (Festus, p. 313; Gell. xx. 1, 25). For the antestatio see Hor. Sat. i. 9, 76 and cf. Plaut. Pers. iv. 9, 8 Sat. ‘Age, ambula in ius, leno.' Dord. 'Quid me in ius vocas?' Sat. 'Illic apud praetorem dicam : sed ego in ius voco.' Dord.' Nonne antestaris?' |